Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE MONDAY, THE 08TH DAY OF APRIL 2019 / 18TH CHAITHRA, 1941 WP(C).No. 11069 of 2018 PETITIONER/S:
1 GRACY GEORGE, AGED 83 YEARS, W/O. LATE GEORGE JOHN, BETHEL, AMBELIPADAM ROAD, VYTTILA, KOCHI - 682 019, ERNAKULAM DISTRICT. 2 DR. GEEGEE GEORGE, AGED 57 YEARS, D/O.LATE GEORGE JOHN, BETHEL, AMBELIPADAM ROAD, VYTTILA, KOCHI - 682 019(PRESENT ADDRESS: DR.GEEGEE GEORGE, THE CLIFF SCHOOL, WOOD COCK ROAD, OOTTY - 1, TAMIL NADU, NILIGIRI DISTRICT), REPRESENTED BY HER MOTHER AND POWER OF ATTORNEY HOLDER GRACY GEORGE, AGED 83 YEARS,W/O.LATE GEORGE JOHN, BETHEL, AMBELIPADAM ROAD, VYTTILA, KOCHI - 682 019, ERNAKULAM DISTRICT. BY ADVS. SRI.L.ALOYSIUS THOMAS SRI.K.A.SHAJI MATHEW
RESPONDENT/S:
1 STATE OF KERALA, REP. BY DISTRICT COLLECTOR, ERNAKULAM, KAKKANAD, ERNAKULAM DISTRICT, KOCHI - 682 030. 2 KOCHI METRO RAIL PROJECT, REP. BY ITS MANAGING DIRECTOR, ERNAKULAM, ERNAKULAM DISTRICT, KOCHI - 682 011. 3 SPECIAL TAHSILDAR(LA) NO.1, KOCHI METRO RAIL PROJECT, ERNAKULAM, KAKKANAD, ERNAKULAM DISTRICT, KOCHI - 682 030. 4 BEENA SAJU, W/O. SAJU M. JOSEPH, AGED 54 YEARS, MATTAMANA, THOTTUNKAL LANE, PETTA, POONITHURA, ERNAKULAM DISTRICT, PIN - 682 317. 5 R. PRASANTH, AGED 48 YEARS, S/O. REGHUNATHAN, GAURI SANKARAM, POONITHURA, ERNAKULAM DISTRICT, PIN - 682 317.
WP(C).No.11069/2018 2 6 T.V VENU, AGED 56 YEARS, S/O. T.V VELU, THEKKEDATH HOUSE, POONITHURA, ERNAKULAM DISTRICT, PIN - 682 317. 7 VIDHYASAGAR, AGED 54 YEARS, S/O. DANIEL RUDRAPATHY, 682 317. 8 E.K SUBRAHMANIAN, AGED 65 YEARS, S/O. E.G KRISHNAN, 682 317. 9 SWARNAMMAL K.R., AGED 64 YEARS, W/O.ANANDARAMAN, DISTRICT, PIN - 682 317. ADDL.R10 THE SECRETARY, COCHIN CORPORATION, ERNAKULAM- 682011.
(ADDITIONAL R10 IS SUO MOTU IMPLEADED AS PER ORDER
DATED 12/03/2019 IN WPC 11069/2018). BY ADVS. BY SRI.JESTIN MATHEW, GOVERNMENT PLEADER SRI.K.JAJU BABU (SR.) SRI.RAAJESH S.SUBRAHMANIAN,SC,COCHIN CO SRI.SUNU P.JOHN SMT.M.U.VIJAYALAKSHMI, SC, KOCHI METRO RAIL LTD. SRI.K.JAJU BABU (SR.) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.11069/2018 3
JUDGMENT
The petitioners claim ownership over a small plots of land having an extent of 1.54 Ares in Survey No.1301/1-5 of Poonithura Village. This land in appearance is seen as public pathway. The Cochin Corporation had tarred this land. However, it is not vested with the Cochin Corporation under any records through a manner known under law. While taking this land for the purpose of Cochin Metro Project, the authority thought it was part of Cochin Corporation and did not include this land for acquisition and also for payment of compensation.
2. As seen from the proceedings of the Additional Tahsildar, Kanayannoor, this is being used as a way. However, nothing is seen on record to show that this was surrendered to the Cochin Corporation. It appears that the petitioners have also given right to use this land by party respondents. WP(C).No.11069/2018 4
3. It is also seen from Ext.P2 proceedings, the decision taken by the Tahsildar to levy tax in respect of the property in the name of the
petitioners. Consequently, the petitioners paid land tax as per Ext.P3. Anyhow, now the land is no longer vested with the petitioners, on account of taking over the same for the Cochin Metro Project.
4. What remains in regard to compensation.
The learned single judge of this Court in Biju P. Mathai v. State of Kerala [2009 (3) KLT 970], in such circumstances, ordered that the land being utilized as public way, compensation shall be paid to the extent of 40%. However, the petitioners cannot claim exclusive compensation. The petitioners, admittedly, had given right to others for using the land as a way, who arrayed as party respondents. The parties were, accordingly, referred to mediation. They agreed to apportion the compensation in equal share. The Cochin Corporation is unable to produce any records before this Court to show that the land belonging to them. It is to be noted that a road register is maintained by the WP(C).No.11069/2018 5 Cochin Corporation and no such records is available in relation to this land. The representative of the Cochin Corporation also took part in the mediation. In such circumstances, in the light of the
judgment of this Court in Biju P. Mathai's case
(supra) compensation shall be determined and paid to the petitioners and party respondents in equal share. This shall be done in the following manner: 80% of the compensation shall be given on executing an agreement. This shall be done within a period of three months. Thereafter, 20% shall be given to the petitioners on executing a sale deed within a further period of two months. If the petitioners have any dispute in regard to the rate of compensation payable to them, they are free to invoke remedy under Section 64 of the Act 30/2013 in accordance with law, treating the sale deed as an award. The writ petition is disposed of as above. Sd/- A.MUHAMED MUSTAQUE JUDGE
ln WP(C).No.11069/2018 6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF REPLY DATED 26.6.2014 ISSUED BY CORPORATION OF KOCHI, VYTTILA ZONAL OFFICE TO SRI. YOHANNAN FERNANDEZ, AS PER RTI ACT. EXHIBIT P2 TRUE COPY OF ORDER NO.S210066/14 DATED 30.4.2015 OF THE ADDITIONAL TAHSILDAR, KANAYANNOOR TALUK. EXHIBIT P3 TRUE COPY OF TAX RECEIPT DATED 20.5.2015 IN RESPECT OF 1.16 ARES OF LAND IN SY. NO. 1301/1 ISSUED FROM POONITHURA VILLAGE OFFICE. EXHIBIT P3(A) TRUE COPY OF TAX RECEIPT DATED 20.5.2015 IN RESPECT OF 0.48.5 ARES OF LAND IN SY. NO. 1301/1 ISSUED FROM POONITHURA VILLAGE OFFICE. EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 19.9.2016. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 24.8.2017 IN W.P.
(C) NO. 41221/2017 OF THIS HON'BLE COURT.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED NIL OF THE 3RD RESPONDENT. RESPONDENT'S/S EXHIBITS: EXT.R3(A) TRUE COPY OF THE LETTER ISSUED BY THE KOCHI MUNICIPAL CORPORATION DATED 06/12/2017. //TRUE COPY// P.A.TO JUDGE